Constitutional Law

JUSTICE SCALIA LEAVES US I can't

Posted on February 13, 2016
JUSTICE SCALIA LEAVES US I can't not-update this semi-retired blog today. Perhaps now is the time to tell how I named it. It was the story about the bunch of pet fish: this one. The punch-line is "Justice Scalia ate all the others." But what I noticed was that, in all the various re-tellings, when told that the young man had named the biggest fish after him, the Justice's articulated assumption

CONFRONTATION CLAUSE ALERT: This

Posted on June 18, 2015
CONFRONTATION CLAUSE ALERT: This morning's Ohio v. Clark is a time-bomb under Crawford v. Washington (much as, I have argued, Crawford was potentially - may still be - a time-bomb under Maryland v. Craig). Clark is unanimous as to outcome, but the Scalia-Ginsburg concurrence outright accuses the "author" of the majority - that would be Justice Alito - of weakening Crawford through word-choice and

Tsk, tsk, Ohio State. - At least

Posted on May 04, 2015
Tsk, tsk, Ohio State. - At least it's ranked, though. Above the Law with the latest on the pushback against caution about going to law school, here.

ICYMI - and I'm sure you didn't

Posted on July 09, 2014
ICYMI - and I'm sure you didn't miss it, if you visit here, but as the long-past Washington gossip columnist once said, if you haven't got anything nice to say, come sit right here next to me - Slate and Above the Law have been in a bit of a tiff over whether the law-school applications pool has finally cratered to the point where now may be a "buying opportunity," on the theory that with fewer

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Alitomania! Hobby Lobby came out

Posted on July 01, 2014
Alitomania! Hobby Lobby came out the Gonzales v. O Centro Espirita-way I mentioned yesterday, except with Alito writing rather than Roberts. On the surface it's a limited holding - applies only to closely-held corporations, depends entirely on the Religious Freedom Restoration Act (RFRA), and at that, on the second, "least restrictive means" prong of RFRA...

Oh and while we're waiting, I should

Posted on June 29, 2014
Oh and while we're waiting, I should remark - I should have remarked it back on April 22, when it was handed down - that on that date, the Court, per Justice Thomas, handed down Prado Navarette v. California, a very dangerous crim pro decision expanding the already-immense power of police to pull over motorists based on thin suspicion (and then carry out plain-sight searches, of course, or

So tomorrow we get Hobby Lobby,

Posted on June 29, 2014
So tomorrow we get Hobby Lobby, and based on who's been writing from each sitting, either Alito or Roberts is expected to write it. But Alito could deliver the labor opinion that's also expected, and with Roberts writing Hobby Lobby, it could be a victory for religious freedom in the marketplace, or it could be a split, like Noel Canning and McMullen...

Jeremiah Denton Catholic, Naval

Posted on April 07, 2014
Jeremiah Denton Catholic, Naval officer, POW, hero, U.S. Senator, attorney. 89. RIP.

Civil Juries Last Friday we had

Posted on March 24, 2014
Civil Juries Last Friday we had a panel at Regent, co-sponsored by our Federalist Society chapter and by The Seventh Admentment Advocate (Andrew Cochran, Washington rep.). Our principal speaker was legal history Prof. Paul Finkelman, of Albany Law School, currently visiting at Louisiana State; I added some comments, and there was q-&-a between us and with the audience...

Many thanks to The Weekly Standard

Posted on January 12, 2014
Many thanks to The Weekly Standard for running my piece on civil juries. Spoiler ahead: the Framers liked them, ergo. so do I.

Crastina erit vobis salus, dicit

Posted on December 24, 2013
Crastina erit vobis salus, dicit Dominus Deus exercitum. - From Nones for the Vigil (day before) Christmas

Goodlatte Patent Troll bill - dubitandum Friends

Posted on December 04, 2013
Goodlatte Patent Troll bill - dubitandum Friends who know my penchant for cross-ideological coalitions (wail til I bring you the news of the glorious Scalia-Kagan alliance on the Confrontation Clause!) have called my attention to H.R. 3309 the Innovation Protection Act, introduced by the reliably conservative Rep...

The Court has granted cert in two

Posted on November 26, 2013
The Court has granted cert in two HHS Mandate cases focusing on the question of religious liberty rights of corporations. It chose for review the two cases that I chose to study with my First Amendment seminar, because they are the cases that stake out the most decisive position on each side: Hobby Lobby (10th Circuit, granting a preliminary injunction), and Conestoga Wood (3rd Circuit, denying

Rob Natelson, a conservative (my

Posted on October 20, 2013
Rob Natelson, a conservative (my term) law professor whom I have long admired for his deep knowledge of 18th century American and English sources (vital for understanding the Constitution) says that the Republican alternative to Obamacare abuses the Commerce Clause the same way the Obamacare bill itself tried to do, but got slapped down for it by the Roberts Court (Chief + 4 conservative "

Best part of the NY Mag. interview: Q.Isn?t

Posted on October 17, 2013
Best part of the NY Mag. interview: Q.Isn?t it terribly frightening to believe in the Devil? A. You?re looking at me as though I?m weird. My God! Are you so out of touch with most of America, most of which believes in the Devil? I mean, Jesus Christ believed in the Devil! It?s in the Gospels! You travel in circles that are so, so removed from mainstream America that you are appalled that anybody

Scalia on theology, democracy,

Posted on October 09, 2013
Scalia on theology, democracy, and media elitism, in NY Magazine

Seems Republican healthcare alternatives

Posted on September 19, 2013
Seems Republican healthcare alternatives are an addictive thing to follow, and, from a standpoint of principled federalism, a disheartening thing to watch. Apparently the Republican Study Committee has endorsed a bill by Rep. Phil Roe of Tennessee, H...

Will there be an Obamacare repeal-and-replace

Posted on September 16, 2013
Will there be an Obamacare repeal-and-replace bill coming out of the House this fall? Well, Rep./Dr. Tom Price's Empowering Patients First Act, H.R. 2300, seems to have some momentum. It has many good features. But - and this is its relevance to a blog about constitutional law - it also has some features that make me squint a little...

Beyond what I wrote yesterday about

Posted on June 27, 2013
Beyond what I wrote yesterday about Perry (which now seems improbable in light of Kennedy's blather for the Court in Windsor, and Scalia's dissent), I'm on vaycay today, and I'm staying that way until I'm not. When I'm not, I'll have some links.

Perry

Posted on June 26, 2013
So marriage dodged the biggest bullet: a holding that Eq Pr requires ssm nationwide.One question I have is, why did Ginsburg join a restrictive opinion on standing, when expanding standing has long been one of her top agenda items (e.g. Laidlaw)? One guess I'll throw into the mix is that if she refused and thereby allowed an opinion on the merits, Kennedy would not have gone her way and the

What was the most significant part

Posted on June 19, 2013
What was the most significant part of the oral argument in Perry v. Hollingsworth, the Proposition 8/California same sex marriage case, back last March 26? I think it had to be this: JUSTICE SCALIA: [W[hen did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes -- some time after Baker, where we said it didn't

Mrs. Thatcher

Posted on April 08, 2013
Mrs. Thatcher Many British columnists writing about today's sad news -- the death of Mrs. Thatcher (she was of course "Baroness" or "Lady" Thatcher, but she was "Mrs." during the meat of her political career, plus, I think her irreducible Mrs.-iness was part of her identity for her fans, so "Mrs...

This afternoon a 16-year-old girl

Posted on February 18, 2013
This afternoon a 16-year-old girl will appear before a judge in Texas to ask if he would very kindly rule that she cannot be forced to have an abortion that she does not want. To this, the "choice" principle has led us. I solicit your prayers that this girl be delivered from the atrocity that threatens her...

Justice Scalia attended the Inauguration

Posted on January 22, 2013
Justice Scalia attended the Inauguration yesterday wearing a replica of St. Thomas More's hat, a gift to the Justice from the Thomas More Society of Richmond, Va. More, of course, was a high-ranking lawyer in the administration of King Henry VIII who became a martyr due to his Catholicism and his opposition to his king's break with the ecclesial jurisdiction (not doctrine, technically -

Seidman Prof. Bainbridge takes

Posted on December 31, 2012
Seidman Prof. Bainbridge takes care of the matter here. I could say more - perhaps I will later, esp. about how choosing one at-the-time viable reading of the Constitution over a later, victorious one, as John Adams did re the Sedition Act, does not amount to "ignoring" the Constitution - but, spurred by a tweet from @walterolson, I realized that I have somewhat aggressively not cared what Prof.

More about Snyder2nd day -- and

Posted on March 03, 2011
More about Snyder2nd day -- and I'm already projective-vomit-sick of the phrase "even for the speech we abhor." As if that was the debate between the parties and within the Court:"Gee, should we extend the 1st Amendment even to speech we abhor?""Naa -- why should we?"Hey, let's! It'd be Enlightened! You on board, Alito? -- All right, be that way...

Snyder v. Phelps: AlitomaniaWestboro

Posted on March 02, 2011
Snyder v. Phelps: AlitomaniaWestboro believes that America is morally flawed; many Americans might feel the same about Westboro. [slip op at 14]No crap, Court.Understatement can have comic effect, but that's not what Albert Snyder needed on this, the last, miserable day of his calvary that began with the officer's and chaplain's visit to his home announcing that his son, LCPL Matthew Snyder USMC,

Executive branch will not defend

Posted on February 24, 2011
Executive branch will not defend DOMAConstitutional: The presumption that the Executive will defend all federal statutes against constitutional attack is not conclusive, but it is very high. To reach for my stock example of a plainly unconstitutional statute: if Congress had passed, and the previous President had signed (or if Congress had enacted over the present President's veto) a law that

Beginning to think that acc. to

Posted on February 17, 2011
Beginning to think that acc. to SCOTUS, the US Courts of Appeals are the only thing that turn Administrative Law, once a nice neighborhood of American law, into more or less of a plague spot. #Vermont Yankee #Pension Benefit Guarantee Corp. v. LTC

Latest Cooley Law School Rankings

Posted on February 12, 2011
Latest Cooley Law School Rankings Achieve New Heights of Intellectual Dishonesty By Elie Mystal LOL. Cooley is a nice school for our denies.

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